Peoples Union of Democratic Rights (PUDR) is concerned that close on the heels of the Supreme Court’s judgment of 21st January 2014, whereby the Court had commuted the death sentences of 15 convicts to life imprisonment, the Delhi High Court and the Mumbai Sessions Court, have in two significant judgements delivered separately have chosen to uphold the death penalty as punishment for rape in both the 16 December 2012 rape and murder case and the Shakti mills rape case of 22 August 2013. The nature of the crime, and the involvement of young persons, including juveniles, is not a matter of dispute. What is disturbing is the sentencing and the reasoning advanced for justification of death penalty in both these cases by the two concerned courts.

On 13 March, the two-judge bench of Delhi High Court, comprising Justice Reva Khetrapal and Justice Pratibha Rani, dismissed the appeals of four convicts – Akshay, Vinay Sharma, Pawan Gupta and Mukesh – and upheld the sessions court’s September verdict of last year, which had sentenced them to death, taking note of the gruesome nature of their crime. The High Court opined that “if the rising trend towards such crimes is not nipped in the bud and arrested at its inception, the poison is likely to spread like wild fire through the social order, rendering it hapless and defunct”. Thus, according to it, the “need of the hour” is exemplary punishment.

Similarly in the Shakti Mills case, the Principal Sessions Judge Shalini Phansalkar-Joshi accepted the plea of the Special Public Prosecutor, Ujjwal Nikam, for framing an additional charge under S.376E of IPC (repeat offenders), for which the maximum punishment is death penalty on the three accused – Vijay Jadhav, Kasim Bengali and Mohammed Salim Ansari. Introduced through a recent amendment in law following the 2012 Delhi rape case, section 376E was brought in supposedly to punish unrepentant criminals who had been previously convicted, but had not changed their attitudes. The award of death penalty to the three accused by the Sessions court is the first such case where the section has been applied.

Where rape is concerned the poor rate of convictions and lack of empathy for women in conflict areas, communal, caste and class considerations etc come in the way of filing of complaint of sexual crimes against women. With poor investigation and even lackadaisical prosecution contribute to making rapists feel immune from being brought to justice. To compensate for this poor conviction rate by awarding the extreme sentence in the name of deterrence is a flawed argument as there is no conclusive evidence that keeping the hang-man ‘feverishly busy’ results in the dawning of a ‘crime-free society.’

The presence of the provision for capital punishment in statute books and continuation of the actual practice of awarding the extreme sentence to those who come from impoverished background has also a brutalizing effect on both the state and the society at large, as it further reinforces different standards for rich and powerful people as against the poor and marginalized. This helps perpetuate a culture of cruelty.

Both the Delhi High Court and the Mumbai Sessions Court, thus, had an opportunity to distance themselves from giving into satisfying “rage of the society”. And to take cognizance of the fact that the pervasive patriarchal structures and psyche that breed the gender-based inequality, discrimination and insensitivity at all levels from family to societal to state institutions must also be taken into account and their complicity recognized. In this particular case too, the courts have turned a blind eye to the lapses on the part of the state agencies responsible for ensuring safety and maintaining law and order and in doing so it has completely absolved them of their implicit connivance in the said crime. And, considering the gravity of the crime, justice would have been served by keeping the convicted confined behind the bars rather than by laying to the gallery.

PUDR firmly believes in the certainty of punishment in all cases of violence against women, as also fair investigations and fair trials. We reject the argument that brutal crimes deserve “exemplary punishment”. Or that sentence must be in proportion to the heinousness of the crime. This retributive approach of ‘an-eye-for-an-eye’ does neither deter the crime of rape nor helps in curbing the ‘culture of cruelty’ where death penalty becomes a matter of public celebration.

PUDR would like to recall that Judge Jyotsna Yagnik chose to sentence the accused Babu Bajrangi and Maya Kodnani and others in the Naroda Patiya massacre of 2002 in which 96 persons including children were killed and women raped before killing. The judge recognized that the crime was brutal & bereft of any extenuating circumstances. But when it came to sentencing she argued that violent crime should be addressed “in a more constructive way” and awarded graded life sentence to the convicted saying that “when alternatives to death penalty is available, it is better to embrace the same”. PUDR draws strength from this to reiterate its opposition to the penalty of death as being inhuman, barbaric, retributive in nature, irreversible and thus unacceptable, and condemns the recent judgments of both the Delhi High Court and the Mumbai Sessions Court to award and uphold death penalty in rape cases.